How the Missouri Cloning Initiative Gives Cloners Total Immunity From Lawsuits For Injuries

James S. Cole, Esq.*

The so-called Missouri Stem Cell Research and Cures Initiative would protect several types of evil acts, not just cloning.  Some of them may surprise people, because they are not advertised by the Initiative’s proponents. 

The Initiative would give the cloners and their associates immunity from civil liability for damages caused by stem cell therapies or by professional negligence.  In other words, the cloning and biotechnical industry would have no liability under state law for the injuries that may be caused by stem cell therapies that have harmful side effects or are administered negligently.  How many highly-touted medicines and procedures have gone tragically wrong, resulting in serious injuries and deaths, even after being approved by the FDA?  One need only call to mind the injuries and deaths from the drug Vioxx as a recent example.  Under the Initiative, victims could not obtain compensation from the cloners under state law for such injuries.  Similarly, there would be no liability under state law for injuries caused by negligence of the professionals who administer the therapies.  The state legislature could not change these rules, because the immunity would be written into the state constitution.

The immunity is found in section 7 of the Initiative, where the cloners have written a sentence that is worth quoting in full:

“No state or local law, regulation, rule, charter, ordinance, or other governmental action shall (i) prevent, restrict, obstruct, or discourage any stem cell research or stem cell therapies and cures that are permitted by this section to be conducted or provided, or (ii) create disincentives for any person to engage in or otherwise associate with such research or therapies and cures.”

Just give that language a minute’s thought.  What will “discourage” stem cells therapies more than civil liability in a lawsuit?  What can be more of  a “disincentive” to stem cell therapies than liability for damages for injuries?  Not much.  The language quoted above forbids any governmental action that will “discourage” stem cell therapies or create “disincentives” for them.  Therefore, it will prohibit lawsuits to hold the cloning industry liable for serious injuries or deaths that their new stem cell therapies may cause. 

Note how extreme the language of the Initiative is.   The Initiative does not say that governmental action must create a “substantial” disincentive, or a “serious” disincentive, or a “material” disincentive.  Any disincentive qualifies.  The cost of defending a lawsuit as well as the exposure to liability for damages will certainly qualify as a “disincentive” to stem cell therapies. 

Substantially the same rule is written into another section of the Initiative, sec. 2(7), in case the courts do not get the message the first time.  The cloners want to make doubly sure that they will not be subject to any court liability that would “discourage” their therapies or would constitute a “disincentive” to stem cell research or stem cell therapies.

One example will illustrate the sweeping immunity that the cloners are attempting to write into the Missouri Constitution for themselves.  Under any technology now known or foreseen, cloning humans will require obtaining egg cells from women into which to place or meld the nuclei of regular body cells.  Hundreds of eggs are required to produce one successful clone in animal studies; the others simply fail to “take,” or they produce nonviable clones.  For the types of cures of millions of people that the cloners are promising, millions of eggs will have to be harvested in order to produce the thousands of clones from whom stem cells will be taken. 
Taking egg cells from human females is not an easy task, and experience with obtaining donor eggs for in vitro fertilization (IVF) shows that it is not all that safe.  In order to maximize the number of eggs that one woman donor may produce, powerful hormones are poured into her.  In over 10% of cases, noticeable health problems result.  Science is still trying to determine just how serious they are.  In fact, a new organization has been formed, “Hands Off Our Ovaries,” to educate people about the substantial health threats that are posed by “ovarian hyperstimulation syndrome,” or OHSS.  See the Web site,  www.handsoffourovaries.com.  Recent Congressional testimony against cloning by pro-choice women physicians, including the former chief medical officer of the FDA, is quite revealing on this score.

Now suppose the Initiative passes, and women are injured because they were not sufficiently warned of the dangers of OHSS and other side effects of harvesting human eggs.  Farfetched?  Well, in the real-life cloning program in South Korea, where the researchers “fixed” the data in an attempt to fool the scientific world into believing that human cloning had been achieved, over 2,200 human eggs were obtained from women by pressure and inducements in the failed program.  After the program was terminated, over one hundred women sued the South Korean government and the cloning institutions for the injuries they suffered from the procedures used to obtain the eggs.

Under the Initiative, Missouri women similarly injured would not be able to sue for their injuries.  Exposure to civil liability would be a “disincentive” to conducting the stem cell research program.  The cloners would be immune from lawsuits.

The same would be true of any type of civil liability that businesses usually have if they are negligent, reckless, or commit frauds.  Civil liability would obviously “discourage” and would constitute an obvious “disincentive” for whatever could be labeled “stem cell research” or “stem cell therapies.”  Under the Initiative language quoted above, civil liability would not be allowed.

It is still the case that federal laws will be enforceable, because the state constitution cannot override federal law.  But there are no federal lawsuits available to citizens for simple product liability and professional negligence.  Many products and therapies are put on the market with FDA approval, so that no federal law is broken, while the manufacturer incurs liability under normal state law for injuries.  It is state law and state courts that provide the day-in and day-out justice that our citizens depend on for redress of personal injuries.  The cloning industry should be just as subject to state laws as any other health care provider, drug company, or business.

The cloners want the public to approve an Initiative that would grant them broad immunity in the state constitution that no other business or citizen enjoys.  Why should the citizens of Missouri grant them and no one else total immunity from their legal responsibilities under Missouri law?